The Missouri Court of Appeals has upheld a Boone County judge's ruling that allows construction of a corn-based ethanol plant between Rogersville and Fordland.
The decision is the latest in a two-year legal clash between Webster County residents, collectively known as Citizens for Groundwater Protection, and Gulfstream Bioflex Energy LLC, the Mount Vernon company behind the $185 million plant.
Residents filed a lawsuit against GBE in October 2006, arguing the plant - planned on 252 acres northwest of U.S. Highway 60 and Porter Crossing Road - would deplete their groundwater supply and pollute area waterways. Visiting Boone County Judge Frank Conley ruled in May 2007 that GBE could move forward with its plans, a decision the plaintiffs appealed a month later.
Springfield attorney Bill McDonald, who represents Citizens for Groundwater Protection, appealed on the grounds that Conley failed to properly dispose of his clients' request for a declaratory judgment and that the "certainly and inevitably" burden of proof applied by the trial judge was legally obsolete.
In his ruling, Conley concluded that the plaintiffs failed to prove that construction of the plant would either result in a nuisance or damages to surrounding properties. Webster County does not have planning and zoning regulations, and the most recent of three efforts to implement them was rejected by voters in November 2007.
The Court of Appeals issued its opinion in favor of GBE exactly two months after appellate judges Gary Lynch, Nancy Rahmeyer and Don Burrell Jr. heard oral arguments from both sides in a packed Plaster Student Union auditorium on the Missouri State University campus.
Chief Judge Lynch wrote the opinion, which includes an almost apologetic passage explaining the court's limited purview: reviewing the case strictly for legal errors raised by the residents suing GBE.
"Thus, regional, state or national public policy issues and debates as to the efficacy of ethanol, the propriety of land-use planning or the conservation of our natural resources are beyond the scope of our appellate function and inquiry and are rightfully left to appropriate legislative bodies and executive agencies for consideration and determination," Lynch wrote.
McDonald, with McDonald & Associates LLC, said his clients were disappointed with the outcome. Those he's spoken to want to appeal to the Missouri Supreme Court - a course of action he's recommending.
"The Court of Appeals ... avoided making a decision on the 'certainly and inevitably' standard that we were so concerned about," McDonald said.
But Springfield attorney Craig Lowther, who represents GBE, noted the appellate court upheld the trial court's ruling that the plaintiffs failed to prove their case, regardless of which standard was applied. Lowther, with Lowther Johnson Attorneys at Law LLC, chalked the litigation up to a classic "not in my backyard," or NIMBY, reaction.
"With neighbors, it's not at all unusual that they appeal after they lose at the lower levels," Lowther said. "They don't really evaluate the information that the trial court gave them. They just have this blind belief that they were wronged, and they charge ahead anyway. ... (This suit is) a typical zoning challenge with the NIMBY forces on steroids."
The Court of Appeals remanded one portion of the lawsuit to the trial court regarding a $25,000 bond posted by Webster County residents in late 2006 when the court granted them a temporary restraining order that prohibited GBE from drilling test wells at the plant site. The Court of Appeals agreed with GBE that the bond shouldn't have been released, and Lowther said his client intends to collect the entire amount from the plaintiffs.
"That is the most we can get for our damages," he said. "They may as well just start passing the hat."
Lowther noted that the state Supreme Court is under no obligation to hear the case on appeal, and he suggested that the lawsuit doesn't raise any "novel or unique issues" that warrant the high court's attention.
The status of the proposed ethanol plant remains unknown. When reached by phone, GBE executive Greg Wilmoth declined to comment on the project or the appellate court ruling.
In June, the Missouri Department of Natural Resources approved an air pollution permit for the plant, which would be capable of producing up to 101 million gallons of fuel-grade ethanol annually.
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